Passing the Fair Elections Now Act

By Dylan Matthews

We highlighted it in Wonkbook, but be sure to check out Dan Eggen's piece on the status of the Fair Elections Now Act -- which would establish voluntary public financing for congressional campaigns -- in Congress. I don't share its proponents' optimism for a whole number of reasons, primarily the Senate's unwillingness to take up countless pieces of legislation the House has already passed, let alone ones neither house has even considered yet. But this argument, from Common Cause President Bob Edgar, seems particularly wrong:

Edgar and others say their chances are improved by separate legislation now under consideration in the Senate aimed at countering a Supreme Court decision allowing unlimited spending by corporations, unions and nonprofit groups on political ads.

"The public wants to see as much reform as Congress is willing to do," said David Donnelly, who is managing the groups' campaign. "The stronger the reform, the more public support you'll get."

If anything, the experience with the Disclose Act should serve as a cautionary tale to public financing backers. With Disclose, the House leadership had a choice. It could have staged a vote just to stage a vote, forcing opponents to put themselves on the record, in an election year, as being against transparency for interest groups. But then it would have likely lost, because the NRA would have opposed the bill, and so moderate Democrats who guard their NRA grades closely would have voted to sink it. So instead, the leadership opted to stage a vote to get it passed, which required making an unseemly deal exempting the NRA and other large lobbies from the bill's requirements. They got most of what they wanted policy-wise, but it denied them the ability to attack the bill's opponents as the ones protecting special interests.

If the congressional leadership is actually considering a vote for the Fair Elections Now Act, they face a similar choice. Maybe it could pass the House unadulterated, but it has no Republican co-sponsors in the Senate, and adding some will likely require making deals with GOP swing votes, deals that will likely be hard to defend in public. So Harry Reid would have to decide, like Nancy Pelosi and Chris van Hollen did with the Disclose Act, whether he wants public financing, or whether he wants to run against Republicans on public financing. With the House experience in the back of his head, I don't like the odds for actual passage there.

-- Dylan Matthews is a student at Harvard and a researcher at The Washington Post.

--"[T]he Fair Elections Now Act -- which would establish voluntary public financing for congressional campaigns"--

Voluntary for candidates. Not voluntary for tax payers. More government rot designed to steal money from producers and bestow it on the political elite, with all the usual political monkeying around designed to enhance the status and power of one party over another (though with unintended consequences and abuses hidden safely in the future.) It's another marker of disgrace in America's downhill slide, with Harvard boy and Klein cheerfully pushing the government's propaganda along.

FastEddieO007: "I believe that radical liberals attempts to ban/censor publication or transmission of disparaging information on government officials who are up for election is treason!"

FastEddie, the Fair Elections Now Act does nothing, absolutely nothing, to ban or censor anything. It simply provides for a degree of public funding for candidates who choose to opt into the system. It doesn't deal at all with corporate speech or private speech or any kind of speech. Your speech and my speech and the speech of everyone else are not affected by this proposal. It just allows candidates, if they choose to do so, to rely on small donations which will be matched by public funds instead of the contributions of large donors.

The controversy over the DISCLOSE Act is more about whether there is a right to anonymous speech. I think there are good arguments on both sides. But on its face, it also doesn't censor anything.

I advise learning what these bills actually do before making blanket criticisms based on faulty information.

msoja: "Not voluntary for tax payers. More government rot designed to steal money from producers and bestow it on the political elite, with all the usual political monkeying around designed to enhance the status and power of one party over another"

The present system benefits the economic elite because they're the ones politicians depend on for their campaigns. If you like that, by all means advocate continued dependency on Exxon, ADM, and Goldman Saks.

Also, it's simply false that public campaign financing favors one party over another. Maine and Arizona have had public campaign financing systems at the state level from 2000, and neither have seen substantial changes in party control (nor are they considered far-left wacko states--and they even voted in these systems by ballot initiative, not by legislative mandate).

What they did change is the nature of people willing to run for office. No longer did candidates have to be wealthy or know wealthy people in order to mount a campaign. No longer could incumbents sit easy on a fundraising warchest designed to scare away competition. I think those changes make for a much healthier democracy.

As far as the funding being "mandatory" for taxpayers, there are lots and lots of programs I don't want my tax dollars spent on. But I get outvoted. Such is life in a democracy. All taxes are involuntary, so that argument kind of goes nowhere.

FastEddieO007: "Can corporations use money to try and brainwash....no Americans won't let them do that. We are simply too smart."

Yeah, the Harry and Louise commercials didn't have any effect the last time we tried health care reform under Clinton. And no one believed the "death panels" mirage that was nowhere in the bill this time around.

Please. I know the "death panel" stuff wasn't exactly pushed by corporations, but lots of people apparently weren't "smart enough" to realize it was nowhere in the bill.

"And hopefully we are too smart to let the Elena Kagan idiot empower the FEC with banning of pamphlets and books!"

Again, there's nothing of the sort under consideration. And I'd bet you that attempts to "ban" pamphlets and books would be reversed 9-0. So let's stop the histrionics and focus on what the law is actually proposing.

Given that public campaign financing has failed at the Presidential level, it baffles me that anyone would suggest trying to impose it on other elections. It's time to take a reality-based look at the issue and abandon this bill.

tomtidrum: "Given that public campaign financing has failed at the Presidential level..."

But it hasn't, or at least it doesn't have to. I assume the reference is to Obama's decision to opt-out of the presidential public finance system in 2008. He opted out because the funding was insufficient to make it worth it for him to not raise money privately. Make it worth it, and politicians will opt in.

Obama is a supporter of public campaign financing; he was a cosponsor of such a bill as a senator. But when the system doesn't offer enough money, you can't expect politicians not to act in their own self-interest. Indeed, it would be foolish of them not to do so. What we have to do is make it in their interest to opt in.

And it wouldn't be expensive to do so. I added up all the presidential candidate fundraising, all the congressional candidate expenditures, all the national party committee expenditures, and the 527 organization expenditures, and got $8.78 per eligible voter per year. That doesn't sound like it would take much to get candidates to opt in.

To paraphrase Butch Cassidy and the Sundance Kid: if they paid me that much to stop robbing him, I'd stop robbing him!

Barack Obama is specifically trying to get around the First Amendment by interpreting McCain-Feingold as allowing the FEC to ban any election-affecting speech...that is to say under McCain-Feingold, Political Parties and Editorial Boards will have a monopoly on "election affecting speech".

Even publishing an e-book that disparages Obama can be stopped just as the 4 Jutices voted to allow the FEC to CENSOR "Hillary"!

FastEddie: First, your complaints again have nothing to do with the Fair Elections Now Act. McCain-Feingold is a different question (and you can't blame Obama for a law that was passed in 2002--when Republicans controlled the House, Senate, and the presidency).

Second, Kagan was acting in her capacity of Attorney General with an obligation to defend the law. I'd say that's a poor measure of how someone would act as a Justice. Heck, it doesn't even apply to people serving in a political capacity; Senator Gillibrand zealously represented tobacco companies but has consistently voted for tobacco regulations. Lawyers are for the most part hired guns, not neutral observers. (There are some exceptions in the Justice Department, but there is also an obligation to defend the laws passed by Congress.)

If a case involving pamphleteering comes before the Court and Justice Kagan comes down on the censorship side, then come talk to me--and I'll probably agree with you. But until then, I'm not going to jump to a conclusion based on her doing the previous job that she was appointed to do.

FastEddieO007: "Even publishing an e-book that disparages Obama can be stopped just as the 4 Jutices voted to allow the FEC to CENSOR "Hillary"!"

Again, you're wrong on the facts. The dissents did not say that "Hillary: The Movie" could be banned under McCain-Feingold. The issue was whether it could be paid for out of general corporate funds rather than a PAC. As Justice Stevens wrote in the very first paragraph of his dissent: "Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to." http://www.law.cornell.edu/supct/html/08-205.ZX.html

So again, I suggest you get a better handle on the facts before making factually incorrect assertions.

I admit that I wrongly targeted "The Fair Elections Now Act" which is strictly a public financing bill.

But make no mistake about Kagan's position---even if by some amazing chance it does not represent Kagan's personal position, it DOES in fact represent Obama's since it was HIS Justice Department and is EXACTLY what he said in his State of the Union Speech.

Obama intends on using Supreme Court nominees to END the Free Speech protection of election-affect discourse.

He wants only Political Parties and Editorial Boards to be allowed to discuss electoral politics in any meaningful way that makes a difference.

"it DOES in fact represent Obama's since it was HIS Justice Department and is EXACTLY what he said in his State of the Union Speech."

Again: the issue in Citizens United, and in McCain-Feingold, is not about whether to "END the Free Speech protection of election-affect discourse" or restricting political discourse to "only Political Parties and Editorial Boards." Again, at least read what I posted above: McCain-Feingold, and the Obama administration's defense of it, was not about a ban; it was about how such speech should be paid for.

I have some sympathy for the majority decision in Citizens United. But even the dissent wasn't talking about a ban. Again, Justice Stevens in dissent explicitly wrote that Citizens United could have used PAC money to promote its speech whenever and wherever it wanted to.

As for Obama's State of the Union speech, here is the entirety of his statement on the issue: "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

That's not a call for restricting speech solely to parties and editorial boards. It's a plea to not have unlimited corporate spending "bankrolling" the political process. Restrictions of corporate spending in politics have been around for over a century. One can argue that those restrictions may still be wrong, but they're not exactly new.

And there's nothing in Obama's speech that says corporate political speech should be banned. Again, it seems to me that corporate PACs remain completely free to promote any speech at any time, and I don't think the administration has ever proposed doing away with that measure.

FastEddie: "If our federal government can restrict election-affecting speech by restricting the underlying economic transactions that provide the means to broadcast ones message, the First Amendment is worthless!"

First, as I wrote above, one can argue that any restrictions are wrong.

Second, many such restrictions have been in place for years, and I haven't heard anyone argue that corporations have too little sway in our political process. Are you arguing the contrary? And just because these regulations might pass constitutional muster doesn't mean that more severe restrictions wouldn't be struck down, so upholding regulations that still allow for a tremendous amount of speech would not render the First Amendment "worthless."

Even before McCain-Feingold, soft money was subject to limitations in ways that hard money was not. And again, I did not perceive a dearth of political speech by individuals or corporations. So did that differentiation make the First Amendment worthless too?

"McCain-Feingold never provided any protections against allowing our democracy to be controlled by monied interests. It handed it to them on a silver platter."

I don't understand what you're trying to say here; it sounds like you're arguing against McCain-Feingold because it didn't do enough to combat the influence of money in politics, yet you also argue that the First Amendment means nothing if it does not allow completely unfettered corporate spending on politics. Also, one of the main provisions of McCain-Feingold was placing limits on previously unlimited contributions to political parties (the "soft money" ban), so that's one aspect where McCain-Feingold restricted the influence of monied interests. I'd be interested if you'd point out where the legislation loosened such influences.

Me and my neighbors should be free to pool our money and buy 5 minutes from any broadcasting outlet willing to accept our money and disparage or praise any policy or politician we choose.

That is not "soft money" but merely my right to free speech.

If you and your neighbors wish to counter with a different argument you too are free.

USA's democracy is best served by free unfettered dialogue by passionate particiapters in policy creation.

There can simply be no trust in any government censorship of that message.

GM, Chrysler, and Ford spend huge advertising budgets to try and sell their cars to me. Despite all their best efforts most Americans still trust Hondas and Toyotas more. Advertising can only go so far, and the American public is not stupid.

Do you think Obama only defeated McCain because he and Unions outspent him and his friends?

FastEddie, I really think you don't understand the law, what McCain-Feingold did, or the dissent in Citizens United, because again I think you're making factually incorrect statements.

"Me and my neighbors should be free to pool our money and buy 5 minutes from any broadcasting outlet willing to accept our money and disparage or praise any policy or politician we choose."

Yes, and you can do so under McCain-Feingold. From Stevens's actual opinion in Citizens United: "Like all other natural persons, every shareholder of every corporation remains entirely free under Austin and McConnell to do however much electioneering she pleases outside of the corporate form. The owners of a “mom & pop” store can simply place ads in their own names, rather than the store’s. If ideologically aligned individuals wish to make unlimited expenditures through the corporate form, they may utilize an MCFL organization that has policies in place to avoid becoming a conduit for business or union interests."

FastEddie: "On behalf of the Obama adminstration, Elena Kagan argued that the FEC could in fact ban/censor anything deemed as electioneering.

"If her and Obama's argument were true, the First Amendment would be worthless. Four Jutices sided with her argument."

Four Justices did not side with her argument because, again, the issue in Citizens United was not about banning "anything deemed as electioneering." It was about how corporations--not individuals--should pay for political speech.

Have you read Stevens's dissent? Here's the link: http://www.law.cornell.edu/supct/html/08-205.ZX.html Go to Section III. Here's an excerpt: "So let us be clear: Neither Austin nor McConnell held or implied that corporations may be silenced; the FEC is not a “censor”; and in the years since these cases were decided, corporations have continued to play a major role in the national dialogue. Laws such as §203 target a class of communications that is especially likely to corrupt the political process, that is at least one degree removed from the views of individual citizens, and that may not even reflect the views of those who pay for it. Such laws burden political speech, and that is always a serious matter, demanding careful scrutiny. But the majority’s incessant talk of a “ban” aims at a straw man."

Please, read the relevant parts of the opinion. Then come back and post again if you wish.

"Despite all their best efforts most Americans still trust Hondas and Toyotas more. Advertising can only go so far, and the American public is not stupid."

Sometimes advertising works, sometimes it doesn't. But I have two words for you: "death panels." Yes, sometimes the American pubic is stupid. Not always, but sometimes. In any case the question is not just whether the public is swayed, but whether politicians are swayed.

FastEddie, I'd be interested in learning about where you're getting your information for your assertions. I don't know if our disagreements are based on faulty premises or differences in reasoning. It seems to me that you're assuming McCain-Feingold did things that it looks to me it simply didn't do.

On the reasoning front, it seems to me that you assume that when judges decide a case, they must agree completely with all of the positions of one side or the other. That's not true. Just as judges can decide a case in favor of one party without embracing everything that party advocated, dissenters can disagree with the majority without embracing all of the positions of the other party. Indeed, while lawyers make all sorts of arguments, it's rare that judges go any further than needed to actually decide the issue at hand. The rest is left for a case where those other questions are actually in dispute.

So even if Kagan did argue that the FEC could ban private pamphleteering (and I'd have to read the actual oral argument to be sure), it's simply not the case that the dissenters in Citizens United "sided with her argument." They just disagreed with the conclusions of the majority regarding the funding of corporate political speech. That's a different question entirely.

McCain-Feingold made the problem worse by handing corrupt political parties and editorial boards** a monopoly on all election-affecting speech.

I want complete unfettered free speech in this country----I don't care if NAACP tries to blame Bush for horrible dragging death, even as George W. Bush was criticized by Gore for upholding Texas Death Penalty for that horrendous crime.

I believe when passionate participants like the Sierra Club, NAACP, Chamber of Commerce go all in on trying to push their causes and their cnadidates we all win.

But McCain-Feingold specifically abolished that.

(**RE: remember how Blago got Axelrod to get favorable editorial coverage as part of the bribe from Obama's Chaicago Machine to him for Senate pick Jarrett...)

FastEddie: "McCain-Feingold made the problem worse by handing corrupt political parties and editorial boards** a monopoly on all election-affecting speech. "

Again, you haven't told me where you got this information. What provision in McCain-Feingold "specifically abolished that"? According to Steven's dissent in Citizens United, McCain-Feingold did no such thing. Again, where are you getting your information?

"(**RE: remember how Blago got Axelrod to get favorable editorial coverage as part of the bribe from Obama's Chaicago Machine to him for Senate pick Jarrett...)"

If that's true, I don't see how that's relevant to our discussion since that could happen with or without McCain-Feingold.

dasimon - The text of McCain-Feingold itself defines election-affecting advertising. It is conceivable this definition will even expand but as it stands it is illegal under McCain-Feingold for groups like NAACP, NRA, Sierra Club, etc., to buy mass media broadcasting advertisements in the 30 days prior to an election if they mention a candidates name.

This is the basic definition.

Under McCain-Feintgold, the intent seems to be to try and limit all election-affecting discussions to paid political party ads and editorial boards----both of which are rotten to the core!!!

If me and my neighbor want to buy a broadcasting ad specifically designed to affect an election, the FEC would come after me.....in fact the regulations have become so burdensome, the FEC is likely to ban first and ask questions later---and me and my neighbor are completely screwed!!!!

In the 1996 Election, Clinton and Gore took over $2 million from the Chinese laundered by convicted straw donors like Charlie Trie, Maria Hsia, James Riady and so many others..thsi law did nothing to fix THAT corruption.

I know what the Obama Administration argued for---the federal power to ban distribution of political pamphlets. Am i the crazy one to believe that that is their vision of political freedom? or are you the crazy one for discounting it?

I am pretty crazy to believe that liberal demogogues like Obama means what they say just as evil leaders like Chavez, and Amedinjen mean exactly what they say.

The battle of Normandy always weighs on my mind as what happens when we fail to take seriously the words emanating from the mouths of our leaders.

FastEddie: "as it stands it is illegal under McCain-Feingold for groups like NAACP, NRA, Sierra Club, etc., to buy mass media broadcasting advertisements in the 30 days prior to an election if they mention a candidates name."

"Under McCain-Feintgold, the intent seems to be to try and limit all election-affecting discussions to paid political party ads and editorial boards..."

Again, please please please read Steven's actual dissent. Here's the relevant excerpt, again: "If ideologically aligned individuals wish to make unlimited expenditures through the corporate form, they may utilize an MCFL organization that has policies in place to avoid becoming a conduit for business or union interests."

Also, they can create a 527 organization which can raise and spend unlimited amounts.

So again, how can you possibly argue that the law restricts political speech to candidates and editorial boards? Especially in the face of all the elections since the law was enacted where we've actually had plenty of speech by non-candidates and non-editorial boards?

"If me and my neighbor want to buy a broadcasting ad specifically designed to affect an election, the FEC would come after me"

Eddie, that's simply not true. I will once again post what Stevens wrote: "Like all other natural persons, every shareholder of every corporation remains entirely free under Austin and McConnell to do however much electioneering she pleases outside of the corporate form."

Again, where are you getting your information? What specific provisions of the law support your assertions? How many times must the same thing be posted from someone who actually knows the law for you to consider the possibility that you are mistaken on the facts?

"I know what the Obama Administration argued for---the federal power to ban distribution of political pamphlets. Am i the crazy one to believe that that is their vision of political freedom? or are you the crazy one for discounting it?"

You're not crazy as much as completely misinformed. Please read the oral argument. The questions applied only to materials funded by corporations and unions. http://www.politifact.com/truth-o-meter/statements/2010/jun/29/jeff-sessions/sessions-says-kagan-argued-government-could-ban-po/ You could put out whatever pamphlets you want and the FEC wouldn't be able to touch you. (And it seems that corporations and unions could do so too as long as it was funded by their PACs.)

Here's another quote from the PolitiFact cite above: "Kagan did argue that pamphlets should be included in the types of communication the government could prohibit. But again, that's in the context of pamphlets paid for directly by corporations or labor unions making independent expenditures (not through their PAC) for a pamphlet advocating for a specific candidate within the last months of an election. That's an awful lot of limiting context left out. And the point is further muddled by using the example of Paine's Common Sense. It's not at all clear that that pamphlet would have fallen under the regulation of the McCain-Feingold Act."

So go ahead an pamphleteer as much as you want without fear.

Moreover, Kagan wasn't representing the "Obama administration"; she was defending the law "as written by Congress."

If you're going to believe what you want to believe without citing any supporting facts and in the face of all the evidence to the contrary, then there's no use trying to have a serious discussion because then you're just not dealing with reality.

"thsi law did nothing to fix THAT corruption."

First of all, using straw donors is illegal. That's an enforcement problem, not a legal problem.

If that happened, who said McCain-Feingold was supposed to fix everything? Is your point that if a law doesn't fix everything, then it's useless? In that case no law would meet your standard. Anyway, you're the one who implied that McCain-Feingold made such things worse. I said it was the same because the law's provisions had nothing to do with that issue. You don't seem to dispute that.

FastEddie, your cite above does nothing to refute what I wrote: that McCain-Feingold did nothing concerning your ability to take out an ad, that your right to pamphleteer is unimpeded, that the FEC can't touch you for doing any of the things you claimed it could do to you. You are not a corporation (as far as I know), so you can spend as much of your own money as you want. You can even get together with your friends and pool your money. (And even if you were a corporation, I believe you could still fund such activities just before elections through a PAC.)

Moreover, your cite is out of date. Ever since the Supreme Court decision in Wisconsin Right To Live v. FEC (2007), corporations have been free to spend as much as they want on thinly disguised "issue" ads naming particular candidates as long as they don't expressly call for the election or defeat of a particular candidate.

So I ask again: where are you getting your information? Isn't it possible that your facts are just wrong?

Yes, the law did restrict spending by corporations out of their general treasury (and such restrictions are not new; for instance, they haven't been able to donate to candidates for some time). I do think Citizens United was not an easy case. But considering that government doesn't have to allow the creation of corporations at all, why can't it then restrict the activities of corporations?

The bottom line seems to be this: Congress was able to pass a law doing everything I am afraid of, and as recently as the last two years a solicitor general argued for undoing the way the law most egregiously was violating the 1st Amendment, but accoring to you I should be completely at ease because a conservatively leaning Supreme Court, even though the very same solicitor General has just been appointed, not to mention another rigid leftist ideologue that was appointed earlier.

Well I do not feel at ease. I believe the leaders of one political party wants to end free speech as I know it to be.